Vol. 137 No. 2 Abstract A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the...
Vol. 124 No. 6 Although good information is critical to effective decisionmaking, public agent’s private incentives to invest in gathering information may not align with the social interest in their doing so. This Article considers how legal-institutional design choices affect government decisionmaker’s incentive to invest in information, as well as how to manage the inevitable trade-off between promoting efficient use of information ex post and stimulating efficient acquisition of information ex ante. Using a simple theoretical framework, the Article considers a range of techniques for incentivizing information gathering, with particular attention to the structure of public institutions and public law.
Vol. 123 No. 3 This Article explores how the separation of powers affects voter’s electoral strategies, and how this interaction influences the performance of different institutional arrangements. We show that when one political agent, such as the President, acts unilaterally, voters are likely to respond asymmetrically to policy successes and failures in order to offset the risk that the President may be biased or “captured” by special interest groups. When political agents act in concert – such as when the President seeks congressional authorization for a policy initiative – voters prefer a more refined strategy, with less acute asymmetries between political rewards and punishments.
The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations
Vol. 120 No. 2 This Article presents a positive theoretical analysis of the relationship between the textual plausibility of an administrative agency’s statutory interpretation and the procedural formality with which the agency promulgates that interpretation. The central claim is that, from the perspective of an agency subject to judicial review, textual plausibility and procedural formality function as strategic substitutes: greater procedural formality will be associated with less textual plausibility, and vice versa. Greater textual plausibility increases an agency’s chances of a favorable judicial ruling but entails some sacrifice of policy discretion. Procedural formality is costly, but a reviewing court may give an agency more substantive latitude when the agency promulgates an interpretive decision via an elaborate formal proceeding. The court may view formal process as a proxy for variables that the court considers important but cannot observe directly, such as the significance of the interpretive issue to the agency’s policy agenda. Because procedural formality and textual plausibility are both costly methods for increasing the agency’s odds of surviving judicial review, a rational agency will choose the optimal mix of textual plausibility and procedural formality. Changes that increase or decrease the costs or benefits associated with one of these two variables will therefore have an indirect effect on the other variable as well. This Article develops the theoretical basis for this strategic substitution effect and explores its ramifications for administrative law.